United States District Court, D. Delaware
plaintiff, Trammell Trott ("Trott"), an inmate at
the James T. Vaughn Correctional Center ("VCC"),
Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983. (D.I. 3.) He appears pro se and
was granted permission to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915.
alleges that on February 19, 2018, the Corrections Emergency
Response Team came to his cell to secure him. The defendant
corporal Nathanial Payton ("Payton") grabbed and
banged Trott's wrist, yanked his shoulder, twisted and
yanked his arm and shoulder, and pinned him against the door
in such a manner that his head would "jerk." Next,
Payton verbally threatened Trott as did another unknown
officer. Trott was taken to segregation isolation where he
remained for 15 days. Trott submitted a grievance and alleges
the defendant Warden Dana Metzger ("Metzger") and
his designee failed to response to the issues and the serious
has also named the VCC as a defendant. In that regard Trott
alleges that he submitted medical requests but "it was
like [he] was purposely ignore by medical staff," the
VCC ignored his requests for medical treatment, and it
ignored his right to make a report under the Prison Rape
STANDARD OF REVIEW
federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C.
§ 1915(e)(2)(B) and § l9l5A(b) if "the action
is frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief." Ball v.
Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see
also 28 U.S.C. § 1915(e)(2) (in forma
pauperis actions); 28 U.S.C. § 1915A (actions in
which prisoner seeks redress from a governmental defendant);
42 U.S.C. § l997e (prisoner actions brought with respect
to prison conditions). The court must accept all factual
allegations in a complaint as true and take them in the light
most favorable to zpro se plaintiff. Phillips v.
County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008);
Ehckson v. Pardus, 551 U.S. 89, 93 (2007). Because
Trott proceeds pro se, his pleading is liberally
construed and his complaint, "however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. at 94 (citations omitted).
action is frivolous if it "lacks an arguable basis
either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). Under 28 U.S.C. §
l9l5(e)(2)(B)(i) and § l9l5A(b)(1), a court may dismiss
a complaint as frivolous if it is "based on an
indisputably meritless legal theory" or a "clearly
baseless" or "fantastic or delusional" factual
scenario. Neitzke, 490 at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see,
e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92
(3d Cir. 1995) (holding frivolous a suit alleging that prison
officials took an inmate's pen and refused to give it
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) and §
l9l5A(b)(1) is identical to the legal standard used when
ruling on Rule 12(b)(6) motions. Tourscher v.
McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying
Fed.R.Civ.P. 12(b)(6) standard to dismissal for failure to
state a claim under § 1915(e)(2)(B)). However, before
dismissing a complaint or claims for failure to state a claim
upon which relief may be granted pursuant to the screening
provisions of 28 U.S.C. §§ 1915 and 1915A, the
court must grant Trott leave to amend his complaint unless
amendment would be inequitable or futile. See Grayson v.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Atl Corp. v. Twombly, 550 U.S. 544
(2007). A plaintiff must plead facts sufficient to show that
a claim has substantive plausibility. See Johnson v. City
of Shelby, __ U.S. __, 135 S.Ct. 346, 347 (2014). A
complaint may not dismissed, however, for imperfect
statements of the legal theory supporting the claim asserted.
See Id. at 346.
the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps: (1) take note of the
elements the plaintiff must plead to state a claim; (2)
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; and
(3) when there are well-pleaded factual allegations, the
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (internal citations and quotations omitted).
Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to
relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). Deciding whether a claim is plausible will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
alleges that Payton and another unnamed correctional officer
verbally threatened him. "Verbal harassment of a
prisoner, although distasteful, does not violate the Eighth
Amendment." Washington v. Rozich, __F.
App'x__, 2018 WL 2446659, at *2 (3d Cir. May 2018)
(unpublished). See McBride v. Deer, 240 F.3d 1287,
1291 (10th Cir. 2001) (taunts and threats are not an Eighth
Amendment violation); Prisoners' Legal Ass'n v.
Roberson, 822 F.Supp. 185, 189 (D.N.J. 1993) (verbal
harassment does not violate inmate's constitutional
rights). Similarly, allegations that prison personnel have
used threatening language and gestures are not cognizable
claims under § 1983. See Collins v. Cundy, 603
F.2d 825 (10th Cir. 1979) (defendant laughed at prisoner and
threatened to hang him).
claims of threats are not cognizable under § 1983.
Therefore, the court will dismiss the claims as frivolous
pursuant to 28 U.S.C. ...